Friday, September 13, 2013

Parliament or legislature can overturn a precedent

[26] It is settled law in Canada that it is within the prerogative of the legislature to enter the domain of the courts and offer a binding interpretation of its own law by enacting declaratory legislation: L.-P. Pigeon, Drafting and Interpreting Legislation (1988), at pp. 81-82. As this Court acknowledged in Western Minerals Ltd. v. Gaumont, [1953] 1 S.C.R. 345, such forays are usually made where the legislature wishes to correct judicial interpretations that it perceives to be erroneous.

[27] In enacting declaratory legislation, the legislature assumes the role of a court and dictates the interpretation of its own law: P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 562. As a result, declaratory provisions operate less as legislation and more as jurisprudence. They are akin to binding precedents, such as the decision of a court: P. Roubier, Le droit transitoire : conflits des lois dans le temps (2nd ed. 1993), at p. 248. Such legislation may overrule a court decision in the same way that a decision of this Court would take precedence over a previous line of lower court judgments on a given question of law.

[28] It is also settled law that declaratory provisions have an immediate effect on pending cases, and are therefore an exception to the general rule that legislation is prospective. The interpretation imposed by a declaratory provision stretches back in time to the date when the legislation it purports to interpret first came into force, with the effect that the legislation in question is deemed to have always included this provision. Thus, the interpretation so declared is taken to have always been the law: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 682-83.

[29] The immediate effect of declaratory legislation is limited, however. In 1953, in Western Minerals, this Court endorsed the statement in W. F. Craies, A Treatise on Statute Law (4th ed. 1936), that declaratory laws "decide like cases pending when the judgments are given, but do not re-open decided cases": p. 370, citing Craies, at pp. 341-42. Like a binding precedent, an interpretation the legislature adopts by enacting a declaratory provision is applicable to all future cases as well as to cases that are pending when the provision comes into force, despite the fact that the events that gave rise to any such dispute would have taken place before the provision was enacted. However, declaratory provisions do not reopen cases that have been resolved in a final judgment.